31 July 2010

Redemption. The title of the latest edition of the Scottish Left Review. Premised on the contention that the last year has been a poor one for those identifying as "socialist, social democrat, progressive or however you choose to style yourself". The introductory comment article explains that the issue:

"... started from the assumption that everyone (at least the Scottish Left Review’s ‘everyone’) would accept that whatever sect, tribe or group you are a part of, none of us did anything to cover ourselves in glory before, during or after the election just gone. So, we thought, let’s ask the question ‘what do we all need to do to redeem ourselves?’. It is with the greatest respect to all our writers that a picture emerges from the totality. And it is a grim picture. Broadly, either people don’t know what we need to do, don’t believe we can do it or don’t even think that we need to do anything at all."

Hence, the edition is dominated by perspective pieces from the "established political groupings" on the Scottish left and discussion, speculation and proposed stratagems for redeeming a flagging Scots leftist politics. In "Still Waiting", John McAllion of the Scottish Socialist Party and Gordon Morgan of Solidarity debate why:

"... the left, particularly in Britain, is weaker than it was and lacks intellectual cohesion, a coherent strategy and particularly a political structure. How did we get here? What lessons should we learn? How do we move forward?"

Vince Mills' article is entitled "Redemption Song" and argues that the "mainstream section" of the Scottish Labout party

"is in no mood to repent. After all, what have they to be repentant about? They have just given their archenemies the Tories the drubbing of their lives."

For Mills, this want of introspection and reflection presents a problem.While Labour's pre-2011 Holyrood election rhetoric may be mildly bullish, he contends that the pervasive thoughtlessness may profoundly damage the party in the longer term. He is skeptical about the prospects of such a reflective revival.

"It may be that Labour in Scotland can redeem itself by seriously building for a nationwide campaign of resistance against the assault on the public sector, but with a small and divided left and a complacent leadership which itself bridges moderate social democracy to hard line neo-liberalism, the people of Scotland are best advised to fashion their own defences."

Kevin Williamson contends that "Its how you play the cards" that matters, or more precisely, whether the SNP can prove themselves canny cardsharps over the next weeks and months. There are many ways to play a hand, not all of them winning. In particular, Williamson cautions that:

"Many independence supporters are wondering what on earth is holding back the leadership of the SNP? Why the hesitancy at a time when clarity, boldness, and even good old fashioned Scottish radicalism are called for to defend Scottish interests? The independence movement is currently stuck in a frustrating Beckett-esque anti-drama of Waiting For Alex."

The Greens' Peter McColl entitles his reflection "Out of the comfort zone" and is concerned that the Scots Greens may become hedged-in by their weddedness to environmental issues.

"As a radical party the number of voters needed to make a significant breakthrough is relatively small. With just 10 per cent of the vote Greens could be very significant players in Scottish politics. But Greens need to be very careful about the politics of their comfort zone."

Further, McColl contends that the party must broaden its approach, not abandoning their familiar comfort zone of environmentalism, but incorporating the issue in ways that will resonate with more foundational social issues. Environmental issues, he suggests, are:

".... simply not enough to ensure that Greens are able to win enough elections. Green politics goes way beyond the environment. It has a foundational critique of the consumerist, market driven society and economy we live in. It is this that will return more Green members to Councils, the Scottish Parliament and other bodies."

"Nowhere to go?" is Gordon McKay's rhetorical question, in an article arguing that the links between trades unions and the Labour Party must continue:

"The trade union movement has the opportunity to reconnect the Labour Party with those people who want a reason to vote Labour. It must grasp that opportunity so that in the years to come the trade unions do not want or are forced to find somewhere else to go."

Isobel Lindsay runs her sensitive fingers across the "Splits that weaken" Scotland's civic sector, fearing that in the face of public sector cuts, the sector will become divided and as a result, the Con-Dem cutting agenda will rule. In "Continent Drifting", Henry McCubbin eyes the "Greek Crisis" and what it might imply for visions of a progressive European Union. Meanwhile, Carole Ewart asks "Are bills of rights wrong?" and wonders:

"Who stands up for human rights in Scotland? The answer used to be simple but now a surprising mix of people argue that rights are a privilege which, in a period of economic downturn, cannot be afforded or that the threat of terrorism is so great that our civil and political rights must be limited.

Finally, in diametric opposition to the concerns dominating the leftist perspectives outlined above, those of you with an interest in American politics might also enjoy this article by Jonathan Rauch on the "Tea Party Paradox", published in the National Journal Magazine. Examining data on "debranded Republican-leaning" American voters, Rauch explains how "The country has moved right, but it's not clear that this helps Republicans in the long run."

30 July 2010

Duncan's horses ate each other. In Julius Caesar's Rome, Casca met a lion and heard tell of a "hundred ghastly women" who, giddied with fear, swore they had spotted "men all in fire walk up and down the streets". Above the marketplace, sat a noisesome bird from out the night, unblinking even in the unfamiliar noontide sunlight. In Shakespeare's depiction of ages of prophecy and portent, the earth itself takes an interest in the death of kings and men of state, marking their melancholy fate through manifestations of disordered nature. In our own unprophetic age, save for a few of the pious, few spot macrocosmic expressions of microcosmic tumult and change. We are alone, with our thoughts, amid dumb and uninterested existence, without divine messengers or signs. Even so, shorn of preternatural interventions, life's connections are endlessly fascinating. Think of the vast webwork of possibilities daily seized and not-seized, opportunities opened and closed in succession, life's countless unintended and unanticipated consequences, mounting and gathering and leaning on one another. We often like to make confident predictions about the results a certain course of conduct will generate, but obviously and unavoidably neglect other, almost boundless, potentialities made possible by the act and deed. Just as Shakespeare gives the world a voice, so too in our own smaller places, the wide world's deeds find reflection and set in motion strange earthly events, tragedies, accidents.

Yesterday, Pater Peat Worrier alerted me to this salutary case in point. On August 24th 2009, an incident occurred involving one William Preston of Hotel Ceilidh-Donia and a 25-year old American tourist, Samuel Hogue, who was staying at the establishment. The pair seem to have been having a chat in a friendly way in the Hotel bar late that evening, I dare say over a dram or two too many. Their talk turned to current affairs, which at that time was dominated by coverage of the release of Abdelbaset Al Megrahi, MacAskill's decision being announced just a few days before on the 20th of August 2009. This seems to have been a point of significant disagreement between Hogue and Preston. Quoth the Scotsman's coverage, demure starring of sweary words replaced:

Mr Hogue said al-Megrahi should never have been released but Mr Preston said he spoke of an incident where an American warship had shot down an Iranian passenger jet and that nothing happened to the captain. The hotelier said Mr Hogue had then inferred the Scots were "yellow bellied bastards" He said he told Mr Hogue: "No more fucking drink for you. Give me your fucking glass."

Here matters seem to have got confused. Glass flew. Injuries were sustained on both sides. Mr Hogue alleged that Mr Preston had deliberately clattered him over the head with the object. Preston denied this, claiming an accidental collision between his glass and Hogue's. The assault charge was tried over three days in Edinburgh's Sheriff Court. After deliberating, on Wednesday the jury found Mr Preston not guilty of assault. However, the Hotelier did plead guilty to a subsequent breach of the peace in Edinburgh's Royal Infirmary, after the incident. The Sheriff, Mhairi Stephen, told Preston:

"The jury acquits you of the serious charge of assault but the evidence supports your guilty plea to the charge of breach of the peace which is a serious charge given the nature of your disorderly conduct. The elephant in the corner is not Mr al-Megrahi but alcohol as is so often in these courts."

Well, only up to a point, My Lady. While being liquored-up undoubtedly played a powerful part in the events described, don't let's overlook the strange and interesting way our lives become impregnated with the affairs of the world, people and places beyond our ken in space and time flood into our lives, and carry us on their eddies and currents.

29 July 2010

I don't know about you, but I've been following American Senators Robert Menendez, Kirsten Gillibrand, Frank Lautenberg and Charles Schumer's barely-half-informed innuendo and bare-faced defamation at a distance, without seeing the whites of their eyes at it were. I like to put names to faces, and a quick search yielded all four arrayed in this sententious, scandalous wee press conference.

You may be surprised by the extent of the clear, uncompromising claims they're making, despite the want of substantiating evidence. I certainly was. While my expectations were low, I hadn't quite taken cognisance of the depths of iniquity and slander to which these self-seeking U.S. politickers are willing to sink. They're like offended children, eyeing their geometry homework without comprehension, having daydreamed through the whole class in which the various principles and their complexities were explained to them. "I don't understand", they mew. "I wasn't listening - and it is all your fault!" Humble creatures these, they'd have you believe, bravely taking on powerful commercial interests, wielding only the torch of truth for illumination, hacking at a noxious thicket of cover up and conspiracy. I imagine this rather appeals to that Manichean, self-righteous bent in America's account of itself and its politics. All of which might be rather more interesting, if any of the individuals involved showed the slightest interest in the subject they declaim over with such exaggerated and clownish gravity. Without any apparent familiarity with the distribution of devolved powers in the UK, the clearly available public record, without acknowledging the papers which have already been published online, the senators permit themselves outrageous defamations and warrantless allegations. In short, their behaviour bears all the hallmarks of bad faith, or as someone else styled it, simple "grandstanding". George Kerevan expands on the theme in an article in today's Scotsman. Last week, Love and Garbage summoned our imaginations away to a thoroughly amusing parallel universe in pointed parody of the whole escapade.

Just a couple of bits of footage for today, then, for those of you who've not had the pleasure of seeing the US senators at first hand. Firstly, I'd encourage you to actually take a peek at this BBC video of Senator Menendez latest (I suspect actually somewhat abashed) press conference, in which he issued cries of "stonewalling" and encouraged those witnesses who rebuffed his accusatory advances - presumably including Jack Straw and Kenny MacAskill but not Tony Blair - to attend a rescheduled Senate hanging and haranguing, as a mechanism to - I kid ye not - "clear their names". If you're not familiar with the other three US Senators, then you are in luck. You can see the increasingly hysterical submissions of all four of those valiant seekers after truth at the press conference mentioned above,with a lurking Menendez playing the eminence gris at their heels...

28 July 2010

Like me, I assume that most of you aren't steeped in the sections and procedures that were agreed in the Memorandum of Understanding, transacted between the UK Government, Scottish and Welsh Ministers and the Northern Irish Executive Committee in March 2010. Many of you, I suspect, might be aware that the Memorandum provides the broad terms of reference for the Joint Ministerial Committee (JMC). The fourth article of the JMC's terms of reference is to "consider disputes between the administrations". Today's Heraldcontains an article, suggesting that the Scottish Government is considering using this very dispute resolution mechanism to try to prevent the coupling of the 2011 Holyrood election and the UK referendum on AV, presently being insisted upon by Nick Clegg and the Coalition Government, despite strenuous objections from various quarters.

The Herald airily refers to "Westminster sources" for its explanation of what precisely the maybe-invoked JMC procedure actually entails. This is pretty sloppy sourcing, since the relevant section can clearly be consulted in the aforementioned Memorandum of Understanding. A look through this document strongly suggests that the Herald's reporting of this isn't just sloppy - but is inaccurate in several particulars. In the interests of clarity and your best information, its worth quoting the relevant section of the document (Annexe 3) in full. Look for yourselves. Sections A 3.6 - 3.8 concern resolving disputes "at working level", "informally". What the Scottish Government is considering is formalising the disagreement. Sections A 3.9 - 3.11 concern "References to the JMC Secretariat", mentioned in the Herald article. Here is what they say:

A3.9 Where the preceding steps have not resolved a difference, any of the parties may formally refer it to the JMC secretariat, so that steps can be taken to resolve it through the JMC process. A difference so referred is known as a disagreement.

A3.10 When it is notified of a disagreement, the Secretariat will normally convene a meeting of officials from the administrations involved (including representatives of the relevant territorial Secretaries of State). Through this process, the Secretariat will seek agreement on the facts, provide an opportunity for the parties to set out their positions and facilitate discussion of shared interests, options for resolving the disagreement and criteria for an agreed outcome. It will also inform the other administrations. This will be done within one month of the referral being received, or another period by agreement. Where a meeting of JMC (Official) is due to take place it may also consider the issue and involve officials from the policy area concerned.

A3.11 The outcome of this meeting will be one of: a proposal put to the relevant Ministers for their agreement; a report to the relevant Ministers seeking their agreement for a further round of the process at official level; or, exceptionally, a referral to the JMC. A disagreement so referred is known as a dispute.

A3.12 Where a dispute has been referred to JMC, the Secretariat will schedule a meeting in accordance with paragraph A1.5 of the Agreement on the JMC to consider the dispute. This will be done within one month of the referral being received, or another period by agreement. Attendance would include ministers from the UK departments and the devolved administrations involved in the dispute, along with the relevant territorial Secretaries of State or their representatives. The senior UK Minister chairing will as far as possible be someone without a direct departmental interest in the issue in dispute. The meeting might take place on the same date as a regular JMC meeting but would be separate from that meeting.

A3.13 With the support of the Secretariat, the Minister chairing will provide a further opportunity for the parties to set out their positions and will facilitate discussion of shared interests, options for resolving the dispute and criteria for an agreed outcome. The Minister chairing may in advance of the meeting wish to make informal efforts to resolve matters.

A3.14 The outcome of this meeting will be one of: an agreement resolving the dispute; agreement to a further round of the process at Ministerial level; or, exceptionally, agreement to notify JMC Plenary that the dispute remains unresolved.

The urgency attending all of this, as I understand it, is the principle time's a wasting. In particular, Michael Settle and Kate Devlin's article in the Herald makes a confusing reference to"...registration officers needing a statutory six months to organise the referendum, the deadline to resolve any dispute moves to December." Although my understanding of election law is sketchy at best, I can't help but wonder if this is a misreading and a misunderstanding of section 102(4) of the Political Parties, Elections and Referendums Act 2000 on the "referendum period". Here is a parliamentary research document, setting out the provisions in a little more detail and with rather more understanding than I could hope to muster. Alternatively, they may be referring to some other section, beyond my ken. Other apparent errors creep into the piece too. Settle and Devlin describe the process thus:

"... if the JMC Secretariat cannot resolve the dispute, then it is handed over to the JMC plenary, involving the Prime Minister and First Ministers, which is not due to take place until next summer."

The next meeting of the JMC is reportedly in October. If the Scottish Government referred the matter to the Secretariat for further discussion, A.3.10 indicates a further meeting of officials would be held within one month of the notice of disagreement. An earlier meeting is perfectly possible. Assuming convening such a meeting did take a month, that would hold up matters till November. Here is where Settle seems to get it wrong. Read A.3.12 again. What the section describes isn't the JMC Plenary attended by First Ministers and Prime Ministers, but merely fellow ministers designated by the relevant parties to the disagreement. A3.12 also suggests that this meeting would be held within one month on the referral or at any other time agreed. Thus, we reach December. At least, I assume this is what the Herald piece is referring to in its cryptic and bald reference to the December deadline for resolving disputes. And as I understand the Memorandum, the Plenary session won't be "handed" the complaint at all, but is merely notified that is has been resolved, stalled or hangs around, odorously.

27 July 2010

With thanks to Caron for drawing my attention to the exchange, during today's questions to the Deputy Prime Minister in the House of Commons, Nick Clegg was asked about the right or power to recall Members of Parliament. Liberal Democrat MP for East Dunbartonshire, Jo Swinson, referred to it as the ability to "call a by-election, if their MP has been guilty of wrongdoing" and wondered when the Government intends to "bring forward legislation to implement it"? You may recall that the coalition's Programme for Government outlined that:

The parties will bring forward early legislation to introduce a power of recall, allowing voters to force a by-election where an MP was found to have engaged in serious wrongdoing and having had a petition calling for a by-election signed by 10% of his or her constituents.

Previously, I've argued that crucial details haven't yet been accounted for by the Government concerning the extent of proposed recall powers. Indeed, the plausibility of the whole wheeze and its status as a significant democratic reform or a largely unwieldy technical power which will moulder in the vaults precisely relies on the answers to certain key questions. Centrally, what, if any, will be the mechanism for assessing - or determining - whether an MP has committed serious wrongdoing? Will such iffy conduct need to be proved criminality, with conviction of the wretched parliamentarian proving a necessary prerequisite to institute recall proceedings? MPs like Swinson and Clegg purport to know what they're talking about when they refer to the policy, as if they'd already proposed something concrete. In actuality, the loose and open textured language of the proposal - wrongdoing, guilt, found to be - admit any number of interpretations. The detail is crucial. And the detail can only be neglected if we assume knowledge, without any foundation, about the final legislative shape of the proposal. Today, Clegg offered no further clarification, but extended the bemusing and confusing legalistic language used in reference to the mysterious definition of "serious wrongdoing". Here is what the Deputy Prime Minister had to say:

"If a member of this House is shown and proved to have committed serious wrongdoing, that their constituents would not have to wait to cast their own judgement on the fitness of that individual to continue representing them to parliament until the next general election, but they would be able to trigger a process of recall by a petition, set at a threshold of 10% of people in the local constituency. We do intend to bring forward that proposal which will enjoy cross-party support, in legislation next year."

I've no specific complaints about the 10% hurdle, per se. That said, no doubt there are some technical questions on eligibility to vote. In particular, I would assume Clegg means to denote 10% of those on the electoral roll at the time of petition and generally entitled to vote in Westminster elections. After all, popping in to your local primary school could be an admirable way of picking up a few hundred votes. It would not, I imagine, strike many as a terrifically fair way of ruining an unloved local politician's political career. That aside, my questions for Clegg and his fellow ministers are these -

(1) Wrongdoing proved to whose satisfaction?

(2) Some references to the power seem to imply a technical definition of wrongdoing, presumably referring to a charge proved in a criminal court. Is this the case? Would any crime do? Serious seems to put some qualification on wrongdoing. If so, what is the nature of that qualification?

(3) Alternatively, if serious wrongdoing will not require proof and conviction to the strict standard of general criminal law, who pray will adjudicate on the serious wrongfulness of MPs conduct?

(4) Alternatively, if there is no standard or no authoritative adjudicator of proved serious wrongfulness, wouldn't it be more accurate to say that the government proposes to allow a recall election simply if 10% of the relevant population sign a petition?

I'm not asking these questions to be wilfully obtuse. Given the broadness of the language being used by Ministers thus far, any one of these proposals might well be intended by the Conservative-Liberal Coalition. For example, on one hand, Clegg uses juridical-type language in his response. On the other, he invokes swiftness as one of the charms of the proposal, allowing the sans-cullottes to drag their degenerate parliamentary seigners from office and deprive them of public funds whippity-quick. Yet prosecutions are hardly known from their swiftness. Merely reflect that the former tribunes awaiting trial for alleged offences uncovered during the late Westminster expenses scandal - Eliot Morley, David Chaytor, Jim Devine, and Lord Hanningfield - haven't yet preceded beyond a preliminary hearing.

And if he and his colleagues intend to empower some Westminster figure or Court or the like to declare it "proved" that an MP has "committed serious wrongdoing" - which reads as a potential defamation - in what sense is this really empowering the people? After all, as I outlined in a previous post, different people might entertain very different conceptions of what makes for a bad, incompetent or otherwise negligent MP. How is it devolving power to the public to empower some tribunal to qualify the people's rights? And don't let's forget the general standards of administrative law and the power of judicial review. If the Government is proposing a Parliamentary Panel on Serious Wrongdoing, could impugned MPs appeal against their disposal? Hardly swift, unbending and absolute popular justice, that.

All of this seems to me to be potentially planned by the qualification implied by Clegg's phrase "proved to have committed serious wrongdoing". It would be perfectly possible to institute a public right or power of recall without any juridically phrased qualifications about MPs' wrongful conduct. Yet representatives and politicians keep returning to this formulation and this language from the programme for government and coalition agreement. I've not yet heard a satisfactory account of who the devil or what the devil they're referring to. Its about time someone asked them to clarify the exact extent of their proposals. It is all very well saying we'll introduce legislation next year. Jo Swinson might have been better asking about what precisely the Government will propose. While the present, textureless plans seem superficially to represent an easy achievement for the Coalition, given putative levels of parliamentary support for the idea - the questions I'm asking will be asked more generally eventually. They have lots of potential to be divisive and furnish ambitious opposition politicians with ways of embarrassing the coalition, with its gusty talk of devolving power to the people. Strategically speaking, much better to have intelligible debates now, rather than disappoint, or be seen to disappoint, later.

26 July 2010

Since I've recently been highlighting some of the correspondence which has darted hither and thither across the Atlantic on the apt and inept questions still surrounding the Lockerbie case in general and Megrahi's compassionate release in particular, here is a document not to be left out. This letter was sent to Alex Salmond by Richard LeBaron, Chargé d'Affaires at the American Embassy in London on the 12th of August 2009. It enclosed a communication sent to Kenny MacAskill on the 9th of that month, outlining American feeling with respect to the then proposed prisoner transfer agreement arrangements with Libya and the alternative of compassionate release for Megrahi. It outlines the position of the American government before Megrahi's release. Its terms are candid, and in some measure, surprising. The text is particularly worth considering in full, in the light of the furore, fury and sound that has flowed in recent days from some of our American friends. Its also something to set beside some of the more questionable claims advanced by more local critics. I've emphasised a few paragraphs which stood out for me. That emphasis, however, is entirely my own. This letter was first published by the American authorities today, the 26th of July (after excerpts were obtained by sections of the press over the weekend...) Published original here.

I have enclosed a copy of a communication from my government that was passed to the Scottish Ministry of Justice on August 9. I am aware that competence for the decision on the matter discussed lies with the Scottish Minister of Justice, but given the gravity of this matter, I thought it important that you receive directly and be aware of the views of my government as your authorities approach a decision.

I am at your disposal to discuss this matter further.

Sincerely,

Richard LeBaron
Chargé d'Affaires

Enclosure: as stated

BEGIN TEXT OF ENCLOSURE:

-- We greatly appreciate the Scottish Government's continued willingness to solicit the views of the United States and the families of its victims with respect to a decision on Megrahi's transfer. This issue is of great importance to the United States.

-- We understand that Scottish law permits the Scottish Government to release individuals in Scottish custody on license if there are compassionate grounds justifying the release, and that as a matter of practice such release is not granted unless the prisoner has a life expectancy of less than three months. We also understand that the Scottish judiciary has the ability to grant bail, and in the case of Megrahi the judiciary has indicated that it is prepared to entertain a renewed bail application on compassionate grounds if Megrahi's prognosis worsens and becomes more certain.

-- The United States respects that decisions concerning compassionate release and bail are reserved to Scottish authorities and are to be made in accordance with Scottish law and policy.

-- The United States is not prepared to support Megrahi's release on compassionate release or bail. We understand that Scottish authorities are ensuring that Megrahi receives quality medical treatment, including palliative care, while incarcerated. The United States maintains its view that in light of the scope of Megrahi's crime, its heinous nature, and its continued and devastating impact on the victims and their families, it would be most appropriate for Megrahi to remain imprisoned for the entirety of his sentence. This was the understanding and expectation at the time arrangements were made for his trial in Scottish Court in the Netherlands, were he or his confederate to be convicted and their appeals upheld.

-- Nevertheless, if Scottish authorities come to the conclusion that Megrahi must be released from Scottish custody, the U.S. position is that conditional release on compassionate grounds would be a far preferable alternative to prisoner transfer, which we strongly oppose.

-- If a decision were made by Scotland to grant conditional release, two conditions would be very important to the United States and would partially mitigate the concerns of the American victims' families. First, any such release should only come after the results of independent and comprehensive medical exams clearly establishing that Megrahi's life expectancy is less than three months. The results of these exams should be made available to the United States and the families of the victims of Pan Am 103. The justification of releasing Megrahi on compassionate grounds would be more severely undercut the longer he is free before his actual death.

-- Second, the United States would strongly oppose any release that would permit Megrahi to travel outside of Scotland. We believe that the welcoming reception that Megrahi might receive if he is permitted to travel abroad would be extremely inappropriate given Megrahi's conviction for a heinous crime that continues to have a deep and profound impact on so many. As such, compassionate release or bail should be conditioned on Megrahi remaining in Scotland.

-- Again, while we are not able to endorse the early release of Megrahi under any scenario, we believe that granting compassionate release or bail under the conditions described (i.e. release with a life expectancy or less than three months and with Megrahi remaining in Scotland under supervision) would mitigate a number of the strong concerns that we have expressed with respect to Megrahi’s release.

-- We appreciate the manner in which the Scottish Government has handled this difficult situation. We recognize that the prisoner transfer decision is one that the Scottish Government did not invite, but now must take. We hope that the Scottish Government would consider every available alternative before considering the granting of Megrahi's prisoner transfer application.

24 July 2010

Unusual, to have spotted two interesting cases in the Court of Session annals in one week (without casting any aspersions on the vivacity and literary style of the Senators of the College of Justice, of course). However, the appeal in the case of David Angus v. Procurator Fiscal, Perth is worth a look. Previously, I've expressed some misgivings about the uncertainty and breadth of the crime of breach of the peace in Scotland. Uncertainties abound. The stated facts in David Angus furnish another example in the genre which I suspect some of you may find shocking. However, the result will likely calm any animal spirits which are conjured. Others, I suspect, will feel more ambivalent about it all. See what you make of the facts.

In 2009, the Procurator Fiscal laid the following complaint against Mr Angus before Perth Sheriff Court:

"On 11 June 2009 at Oakbank Crescent you did conduct yourself in a disorderly manner pass J born 10/09/1994, your newspaper delivery girl, a piece of paper with a message and your mobile phone number thereon, ask her to keep in touch with you, place her in a fear of state and alarm (sic) and commit a breach of the peace."

The facts were not disputed. A fourth year pupil in secondary school, the complainer "J" was 15 years old and delivered Mr Angus' newspaper. They had chatted briefly once before, making cursory and apparently friendly introductions only. On the day of the alleged breach of the piece, they had another short conversion, after which Angus took to his car. A short time later, on another street, he drew alongside her in his car, and the following occurred:

He said "I have a piece of paper for you" and handed it to her. He then said "We can keep in touch". She read the note and said "Okay". The note said "J here is my number keep in touch" and there was a mobile telephone number written on the paper.

Nothing further was transacted, no lewd asides or additional comment were made by the appellant. Even so, in his evidence Angus accepted that pressing his telephone number into the hands of a largely unknown teenage girl might not have been entirely appropriate, informing the Sheriff Court that he had resolved to apologise when next he encountered J. I can only assume that he never got the chance. Having phoned her mother expressing concerns, J finished her round and then returned home. J's mother then telephoned her daughter's supervisor, who came to her house and from there phoned the police. On the basis of the conduct thus outlined, the Sheriff convicted Mr Angus of breach of the peace. I don't care to defend the man's conduct. Who knows what motivated his cackhanded attempt at contact with the young woman, innocent, lecherous or nefarious. J's reported discomfiture seems to me entirely understandable. However, I don't see any justification for making assumptions about the young woman's exaggerated vulnerability and passivity either. Whatever his misplaced intentions, the facts on which this conviction was based appear to me to be pretty flimsy. Angus' lawyers clearly thought so too, appealing his conviction on the basis that the evidence lead did not disclose a breach of the peace. Explaining the opinion of the appeal court, Lord Brodie emphasised that:

"... not everything said and done in public amounts to breach of the peace, even if it might be said to be indecorous, inappropriate or irritating in nature."

Quoting Lord Coulsfield's judgement from the important Scots authority on breach of the peace, Smith v. Donnelly, he continued:

"... we think it sufficiently clear that something substantially greater than mere irritation is involved ... What is required, ... it seems to us, is conduct which does present as genuinely alarming and disturbing, in its context, to any reasonable person ... the conduct must be 'flagrant' if it is to justify a conviction".

Of itself, does mysteriously handing a young woman your telephone number breach of the peace, assuming such attentions are unwelcome? Does her age matter? Probably, somewhat. If Angus had added some licentious observations to his billet doux or to his conversation, his conviction would almost certainly have stood. What about if she had been older, particularly above the age of consent? Different? If so, why so? I'm sure you'll reign in your shock to discover that the Court's reasoning in this case is neither close nor clear. The very broadness of the offence of breach of the peace tends to enforce a sort of casuistry in judgement. As a result, it is almost impossible to confidently assess the boundaries of legality and illegality. In this case, the Court clearly found Angus' conduct unexplained but relatively innocuous, Lords Hardie, Brodie and McEwan holding that it didn't attain a minimal level of severity:

"... we cannot see what the appellant did and said to be such as to cause alarm to ordinary people and threaten serious disturbance to the community. The appellant's behaviour remains unexplained and, frankly, puzzling. He himself described it as "inappropriate". It is not something that a prudent person who did not wish to excite suspicion would have done. However, not all such behaviour is made criminal by reference to the law of breach of the peace."

As a result, they allowed his appeal against his conviction. Another dim speck of light illuminates the galaxy of conduct which might or might not be prosecuted as a breach of the peace. What do you make of it? A righteous rejection of an overreaching prosecution service? A failure by the appeal court to recognise the insidiousness of men's clumsy, potentially lusty predations on young women? For myself, I'd argue that prosecuting and penalising anyone for the bare conduct admitted by David Angus is totally unjustified, wildly disproportionate to whatever limited harm the fool might have caused. I can entirely understand J's discomfort and her mother's concern. But in the end, he only gave his papergirl his number.

23 July 2010

After the recent Lockerbie Case dominated days, albeit leavened by the odd tale of an ardent litigant, I wanted to turn my attention backwards rather than forwards. In place of speculation on future elections, referendums and so on - I thought it might be instructive to lay out a piece of business recently concluded by Holyrood - the sections of the Criminal Justice and Licensing (Scotland) Bill composed to deal with serious organised crime. On criminal justice, the SNP government are to be commended for resisting the restless and bottomless penality and illiberality of Scotland's Labour and Tory parliamentary groups. Yet this resistance hasn't always seemed entirely confident and hasn't been as thoroughgoing or consistent as I should like. Indeed, in the reform of old offences and the institution of new infractions, the Government and Parliament have tended to favour broadly-drafted, maximally criminalising definitions, relying on prosecutorial discretion to weigh the merits of individual cases and to punish the more egregious offenders and judicial interpretation to narrow the ambit of offenders. Like many interested in the liberty of the subject, I find this reliance on trusting the Crown Office and the Procurator Fiscal Services for the proper administration of our criminal justice system deeply concerning.

Criminal law, on this theory, is never really intended to be enforced. Rather, this theorem seems to posit the relative autonomy of the values informing decisions to prosecute or not - connected but not determined by the categories of criminal law. On one level, this is nothing new. Unlike some other countries, whose prosecutors theoretically have no discretion to prevent a prosecution if a crime has been detected, Scottish procurators fiscal need not, even in theory, drag every offender before the bar of a Court and assail all lawbreakers with the instruments of indictment and complaint. The difference, the concerning difference in contemporary Holyrood legislation, is not one of kind but of degree. What worries me is that offences are being passed into law most instances of which, parliamentarians, police and prosecutors would not want to see prosecuted and don't anticipate to see prosecuted. Prosecutorial discretion becomes, paradoxically, the means by which the law is not enforced. At its most extreme, the logic of this position commends criminalising everything, authorising the forces of order to pursue any infraction. The authority of limitless justification, the official liberty that comes with the absence of constraint, permits these lawful bloodhounds to case down the "true" criminals, sinners and offenders, leaving the meek and the just and the benighted untouched. Yet by the letter of the law, the liberty of the the meek and the just and the benighted is equally imperilled by such laws. The prosecutor holds all of the cards. I should stress, I'm not suggesting that our criminal law has lapsed wholesale into this form. However, Holyrood is undoubtedly passing criminal legislation which precisely participates in the logic of this extreme case.

Not convinced? Time for an example. The recently passed Criminal Justice and Licensing (Scotland) Bill introduces novel provisions into Scots law. Heretofore, "organised crime" prosecutions have been based on non-specialised offences of our Common Law, including charges of conspiracy. The competence of these charges hasn't been ended, but has been extensively supplemented with new specific provisions criminalising participation in criminal endeavours identified as serious and organised. A couple of preliminary definitions, important for understanding the sections which follow. Throughout, serious organised crime should be taken to denote:

“... crime involving two or more persons acting together for the principal purpose of committing or conspiring to commit a serious offence or a series of serious offences...”

What, I hear you cry, are these mysterious serious offences? Fear not, a statutory definition is to hand!

“serious offence” means an indictable offence— (a) committed with the intention of obtaining a material benefit for any person, or (b) which is an act of violence committed or a threat made with the intention of obtaining such a benefit in the future, and “material benefit” means a right or interest of any description in any property, whether heritable or moveable and whether corporeal or incorporeal.

Qualms were expressed by many in Holyrood's Justice Committee about this definition during their deliberations. Concerns included the fact that "indictable" really isn't a significant qualification. While some very minor offences are only triable summarily, most "minor" infringements of Common Law offences - petty shoplifting for example - are infractions of indictable offences, even if no indictment is laid against the accused. Equally, serious is here defined in a rather unserious manner - on its face subsection (a) only requires a de minimis intention to acquire any material benefit. A two-man fraud which means to accrue a mighty £0.01 falls within this definition. Despite these doubts, no parliamentary could apparently put together anything better and the definition stands in the final Bill, as passed. On this definition, a two-teen wheeze to shoplift a single penny sweetie from their local corner shop is serious organised crime, being a clear "material benefit" to the pair and minimally conspiratorial. By dint of Section 25, "Involvement in serious organised crime" of itself will constitute a competent charge when the Act comes into force.

(1) A person who agrees with at least one other person to become involved in serious organised crime commits an offence.
(1A) Without limiting the generality of subsection (1), a person agrees to become involved in serious organised crime if the person—
(a) agrees to do something (whether or not the doing of that thing would itself
constitute an offence), and
(b) knows or suspects, or ought reasonably to have known or suspected, that the doing of that thing will enable or further the commission of serious organised crime.

Turn again to our extreme case and our gallant pair of callants robbing a local candymerchant of his toothsome wares. Add a third boy. This chap's duty is to distract the pious chewmonger manning the front of the shop by engaging him in an entirely lawful discussion of his favourite Biblical passage (Corinthians 2:14) while his criminal cohorts make off with the single penny sweet. His mates don't tell him why he is indulging in such a discussion, but the canny youth has his suspicions about his would-be larcenous comerades. Backstabbing villains, they don't intend to share their sweet with their third companion anyway. To fall foul of section 25 risks a maximum ten year prison sentence, if prosecuted on indictment, 12 months if the summary procedure of a sheriff sitting alone is employed by procurators fiscal. In theory, this unfortunate Biblical interlocutor could be taken to be involved in serious organised crime, gazing into the abyss of a ten year sentence. This is, of course, a very extreme example, pushed to absurdity. There is no way, you might think, that the Crown would ever institute such proceedings, no chance that a judge would impose such a sentence. And you'd probably be right. That is the devil of these trust-me statutes. The trust and confidence they invoke is not entirely misplaced and isn't as quixotic as it seems.

Onward, to the next sections. Section 26 adds connection to serious organised criminality as an "aggravation" to other offences, with a view to ratcheting up the punishment imposed. Evidence of this connection does not need to be corroborated. Section 27 enshrines a further novel offence of "Directing serious organised crime" while section 28 criminalises "Failures to report serious organised crime". The defitions I started with a shared throughout, hence, a serious crime is an indictable offence committed with an intention to receive material benefit or violence in anticipation of such a benefit. On indictment, directing serious organised crime will now attract a maximum 14 year sentence, failures to report a maximum of 5 years in prison.

I'm not a practitioner, hence I lack a practitioner's sensitivity to how these new offences might work in practice - and crucially, how helpful they will be in cornering the clichéd "Mr Bigs" of Scotland's criminal economy. What does seem clear to me, however, is that the sections enacted are like a blunt piece of wood which prosecutors and police are expected to whittle down into sharp, narrow stakes to drive through the hearts of the shadowy figures peopling the upper echelons of Scotland's concerted and lucrative criminal enterprises. To do so, Holyrood has enshrined an exceedingly broad law, potentially bringing any number of petty, unserious penny-driven criminal acts within the compass of serious organised crime, technically defined. Given the reported difficulties which have hampered the prosecution of ringleaders, the move may justified and our legislators vindicated for taking exitus acta probat for their maxim, hoping the outcomes condone the breadth and potential illiberality of the law they passed. However, once again Holyrood has invited us to implicitly trust the judgement and conduct of the Lord Advocate, Crown Office and Procurator Fiscal service not to enforce the law they've passed. If their custodianship should prove less virtuous than our tribunes hope, the Act has all the potential to produce unjust and chimerical results.

22 July 2010

For completeness and interest, I wanted to quote in its entirety the epistle sent by First Minister Alex Salmond to former Democratic U.S. Presidential hopeful, Senator John Kerry. Having been licked by the younger Bush, Kerry now serves as chairman of the the U.S. Senate Committee on Foreign Relations.The Maximum Eck also sent copies to US Secretary of State Hilary Clinton and Senators Gillibrand, Lautenberg, Menendez and Schumer, notable of late for their misunderstandings and loose allegations concerning Megrahi's release.

Dear Senator Kerry

I am writing to you about the Senate Foreign Relations Committee's recent interest in the release of Abdelbaset Ali Mohmed Al-Megrahi, the man convicted of the Lockerbie bombing. This letter sets out the Scottish Government's position on the key issues that have been raised in recent days. I trust it will assist your Committee's consideration of this matter.

I want first of all to restate the revulsion of the Scottish Government and the people of Scotland at the bombing of Flight Pan Am 103 and to acknowledge the terrible pain and suffering inflicted on the victims and the relatives of all those who died in the Lockerbie atrocity. Whatever different views we have about the release of Al-Megrahi, I am sure we stand together on that.

My understanding is that the recent interest from the Committee and from other Senators stems mainly from concerns over any role played by BP in Al-Megrahi's release. I can say unequivocally that the Scottish Government has never, at any point, received any representations from BP in relation to Al-Megrahi. That is to say we had no submissions or lobbying of any kind from BP, either oral or written, and, to my knowledge, the subject of Al-Megrahi was never raised by any BP representative to any Scottish Government Minister. That includes the Justice Minister to whom it fell to make the decisions on prisoner transfer and compassionate release on a quasi-judicial basis.

Where BP has admitted that it played a role is in encouraging the UK Government to conclude a Prisoner Transfer Agreement (PTA) with the Libyan Government. I must make clear that the Scottish Government strongly opposed the PTA and the memorandum that led to it was agreed without our knowledge and against our wishes. Indeed it was the Scottish Government which first drew attention to these negotiations involving former Prime Minister Tony Blair and his Libyan counterparts as soon as we learned of them in 2007. By definition, a PTA with Libya concerned Al-Megrahi since he was the only Libyan national in Scottish custody. This point was underlined when the UK Government failed to exclude Al-Megrahi from the face of the agreement.

As was highlighted last year, the Scottish Government rejected the application for transfer of Al-Megrahi under the PTA specifically on the basis that the US Government and families of victims in the United States had been led to believe that such a prisoner transfer would not be possible for anyone convicted of the Lockerbie atrocity. If your Committee is concerned about BP's role or the PTA then it is BP and the previous UK administration that should be the focus of your enquiries. There is nothing the Scottish Government can add to this since we have had no contact with BP at any point in the process of considering Al-Megrahi's position.

The position of the then UK Government in this matter was best expressed by the former Foreign Secretary Mr Milliband in his statement to the House of Commons on 12 October 2009 when he said "The UK Government had a responsibility to consider the consequences of any Scottish decision. Although the decision was not one for the UK Government, British interests, including those of UK nationals, British businesses and possibly security cooperation would be damaged. .. if Megrahi were to die in a Scottish prison."

The decision of the Scottish Government to release Al-Megrahi was made on the basis of an application for compassionate release. This is a separate and long-standing process within the Scottish justice system under which a total of 39 prisoners - including Al-Megrahi have been released since the present provisions were introduced in 1993. During that period, all applications meeting the required criteria and which had support from the Scottish Prison Service, doctors and social work staff, and, in appropriate cases, the Parole Board for Scotland, were granted. I can assure you that consideration of Al-Megrahi's application followed the due process of Scots Law at all stages and that the decision was made in good faith and on the basis of the appropriate criteria.

In order to demonstrate that due process was followed, we published all the key documents related to the decision where permission for publication was given. The only significant documents that we have not published are US Government representations and some correspondence from the UK Government, where permission was declined. The Scottish Government is, and has always been, willing to publish these remaining documents if the US and UK Governments are willing to give permission for that to be done.

There has been some questioning of the medical advice that was used to inform the decision on compassionate release. That advice was compiled by Dr Andrew Fraser, the Director of Health and Care in the Scottish Prison Service, drawing on medical expertise provided by two consultant oncologists, two consultant urologists and the primary care physician. All of these specialists are employed by the National Health Service in Scotland. I do not believe there is any value in questioning the professional integrity of Dr Fraser, who made clinical judgements in good faith and who had no interest in giving anything other than the most professional standard of advice he could offer. There is no evidence that any of the doctors were placed under any outside influence whatsoever and what they provided was an objective view of Al-Megrahi's condition at that time.

Quite separately, the Libyan Government commissioned and paid for advice from other leading cancer specialists. These reports commissioned by the Libyan Government played no part in the decision on compassionate release. Indeed, the report most widely quoted, compiled by Professor Sikora, was not received by the Scottish Government until four days after the medical advice on compassionate release had been presented to the Scottish Justice Minister. I can therefore reassure you and your Committee that the medical evidence which informed the decision to release Al-Megrahi took no account of any assessments paid for by the Libyan Government.

I know that some of your colleagues have questioned how Al-Megrahi can still be alive 11 months after release, when the decision was based on medical advice that 3 months was a reasonable prognosis for his life expectancy. While he has lived for longer than the prognosis suggested, there was a recognition at the time that he could die sooner or live longer. This was made clear in the Scottish Government's public statements, and was an acknowledgement that prognosis in cancer cases is subject to several variables that could affect the estimate of life expectancy. The fact remains, however, that Al-Megrahi is dying of cancer.

I am aware of comments from Secretary of State Clinton to the effect that she would encourage the UK Government and Scottish Government to review how the decisions were reached. I would note that the Scottish Government's actions have already been subject to scrutiny by Committees of both the Scottish Parliament and the UK Parliament. Their reports and our responses are a matter of public record. There is nothing within them to challenge the Scottish Government's position that the decision was made in good faith and in line with due process. However we will gladly co-operate with the UK Cabinet Secretary in reviewing the publication of any further documents germane to the case.

On the broader questions of inquiry, the Scottish Government do not doubt the safety of the conviction of Mr Al-Megrahi. Nevertheless, there remain concerns to some on the wider issues of the Lockerbie atrocity. The questions to be asked and answered in any such inquiry would be beyond the jurisdiction of Scots Law and the remit of the Scottish Government, and such an inquiry would therefore need to be initiated by those with the required power and authority to deal with an issue, international in its nature. As was indicated last year, the Scottish Government would be happy to co-operate fully with such an inquiry. I would add that the case remains open with regard to others who may have had an involvement, with Mr Al-Megrahi, in the Lockerbie atrocity. Scottish and US authorities continue to work together in this area.

I am aware that the US Government and many relatives of those who died, particularly in the US, profoundly disagree with the Scottish Government's decision to release Al-Megrahi on compassionate grounds. I do not expect anything I say will change that but I do think it is important to put on record the background to that decision and reassure you that it was made with integrity and following a clear legal process. I hope that my doing so will assist the Committee.

I am copying this letter to Senators Gillibrand, Lautenberg, Menendez and Schumer and to Secretary of State Clinton. I am also passing a copy to the US Consulate in Edinburgh.

For those Scots hostile to the compassionate Megrahi, they often see Scotland as a besmirched player on the world's stage, arguing that she has become a tatterdemalion figure, robbed of her dignity by the decision, stripped bosom-bare before the judgemental eyes of the American world clothed only in the rags of rent reputation. Certainly, Cameron did his weather best to contribute to this impression during his tea culpas during the recent White House conference. The media does its part in the production of this orthodoxy, however. You might recall how, at the time, the BBC had crews shuffling up and down Edinburgh's Royal Mile looking for holidaying Americans to be the voice of their nation and offer their commentary on the release of Megrahi. Some had views, clearly informed by an antecedent knowledge of the case. Many, it seemed to me, gave the answers that they felt were expected of them. The interviewers assumed that the Americans would have a position, and whether out of politeness or embarrassment, they dutifully produced one.

In recent days and at the time of the compassionate release, I've asked various American friends and acquaintances about the Lockerbie case and their views, if any, on Megrahi's dying liberty. It may (or may not) surprise you to learn that a significant number had never even heard of Pan Am Flight 103 and its melancholy fate over the skies of Lockerbie in 1988. Or if they had, their views were not stridently formed. None thought to mention Scotland's reputation. They were not outraged, merely rather confused by what coverage they had encountered, knowing few of the details, facts or circumstances implicated in the event or the subsequent trial of suspects. I'm not about to make any great generalisation from this small sample of opinion. However, it gives the lie to any straightforward belief that the whole of America is a roiling pool of outrage against Scotland. While parts of the media may be more informed and more interested - and consequently the subject may have predominated during Cameron's visit to the United States - the thesis that releasing Megrahi has shamed Scotland in any general American sense hardly seems made out at all. And let's face it, from what I gather about the cynical instrumental world of international diplomacy, invocations of shame at the highest political level are calculated political and geo-political appeals, rather than the spontaneous outburst of emotionally-charged national affront and revulsion which they pretend to represent.

21 July 2010

I thought the relevant passage was in Robert Louis Stevenson's Edinburgh: Picturesque Notes, but a quick look suggests I'm mistaken. At any rate, somewhere in the limited canon of literature which mentions the Court of Session, an author sketched one of the "Parliament House characters", infamous in his own day. This anonymous soul had a reputation for enthusiastic, serial and spurious litigation. Off the top of my head, I seem to recall that the piece comically recounted how this chap had simultaneously attempted to sustain two logically incompatible pleas in two different courts. Their Lordships happening to confer over lunch, the wretched man lost both causes. In any case, his hunger for actions and causes was not abated by this minor setback and he continued on his long, unsuccessful career as a long suffering party-litigant. The character came to mind yesterday, when I happened across the disposition of the reclaiming motion in the case of one Terence Patrick Ewing v. Times Newspapers Ltd. In this case, however, the serial suer was not a homegrown eccentric, but a English tourist who went to extraordinary lengths to try to be defamed in Scottish jurisdiction. Lord Gill, the Lord Justice Clerk, along with Lords Marnoch and Mackay of Drumadoon brought a brutal end of Mr Ewing's litigation in the Court of Session with the assessment that he had:

"... inflicted needless expense on the defender. He has imposed a needless burden on the overstretched resources of this court. It is time to bring down the curtain on this action before further time and money are wasted."

The whole judgements effuses a sort of measured, starchy disgust. So what the devil did Mr Ewing do? A number of things, as it happens. From the judicial documents, the whole story and its characters lurch from absurdity to pitiful absurdity. The action originated in an article which appeared in the Sunday Times and online on Times Online concerning planning applications in Weston-Super-Mare (one has to love the trivial sites in which law's stately grandeur unfolds). I quote from the Scottish Court's judgement:

"The essential points in the article complained of are that a body called the Euston Trust, with which the pursuer is associated, took a secret payment of £10,000 to drop its objections to a £16 million development in Weston-super-Mare; that the Euston Trust had objected to dozens of developments across Britain since its inception four years earlier and was suspected of taking money from other builders; that the pursuer told the Sunday Times that he intended to target the £2 billion redevelopment of derelict rail yards at Kings Cross and that in September 2005 at a meeting with a firm of housebuilders the then secretary of the Euston Trust, Keith Hammerton, said that he believed that the pursuer had often taken payments from other developers. According to the article, the minutes taken by an independent solicitor recorded a comment by Mr Hammerton that he had suspected for some time that the pursuer had received payments from developers to pull out of intended judicial review challenges. The article recorded that the pursuer emphatically denied having been offered, or having taken, payments from developers and said that Mr Hammerton, from whom he had dissociated himself, had not passed on the £10,000."

The paper basically alleged that Ewing was a rather dishonest and conniving "professional nimby", who turned his oppression into a not-so-quick buck, with planning applicants paying him to sod off This Euston Trust was "an unincorporated and unregulated body run from a North London council flat by the claimant" - namely Mr Ewing - who amongst his other accomplishments is also "a convicted fraudster". Owing to no less than 37 actions raised by Mr Ewing, in December 1989 the English High Court declared him to be a "vexatious litigant," imposing certain judicial limitations on his capacity to indulge in his apparently endless and obsessive litigious hobby. Since 1989, Ewing has apparently petitioned the High Court to allow him to institute proceedings in no less than 19 other matters. A thirst unquenched, methinks. In the Scots judgement, the Lord Justice Clerk numbered:

"Ministers of the Crown, the Director of Public Prosecutions, the Security Service, the Registrar of Companies, the Criminal Injuries Compensation Board, the Legal Services Ombudsman, local authorities and developers are among his many victims."

One English High Court judge described him as having a "veracious appetite for civil litigation" and a rampant disposition not to pay the costs he imposes on those he takes it into his mind to sue. His case against the Times was just another in an unsuccessful train of actions, with Mr Justice Coulson refusing him leave to bring proceedings in England in 2008. The judgement is full of odd flourishes and droll understatement from the learned judge, which I can hardly do justice to in this truncated summary. It also adds another charming feature to the twisted and knotted grain of Mr Ewing - in his legal letters, he likes to lapse into insulting and racist language and freely confess his pettifoggery. But what to do now? Despite an appeal, his English case seemed to have sputtered to a halt. Here is where the matter takes on a Scottish savour. Having had his claims repelled on a number of bases in England, he was not so readily to be defeated. Mr Ewing then promptly:

".... travelled to Scotland where he downloaded the internet versions of the article and read a hard copy of it in a public library. In June 2008 he raised the present action."

And to keep as many legal irons in the fire as possible, Mr Ewing took another wee trip. In Lord Justice Clerk Gill's words:

"At about that time the pursuer, seeking to be defamed in Northern Ireland, travelled to Belfast, downloaded the same versions of the article and read a hard copy of it. He then served two writs on the present defender in the High Court of Northern Ireland."

" ... determined recreational litigant with little regard for the constraints that the courts have attempted to impose, no appreciation of the proportionality of his actions and no concern for the financial interests of others."

The appeal before the Court of Session was primarily concerned with this caution. As noted at the outset, the hope was forlorn and the judgement crashes down in a quietly damning, understated way:

"The present action arises because the pursuer came to Scotland to acquire a cause of action. He has no connection with Scotland and has no apparent reputation here to defend. If he should have suffered hurt feelings when he read the article here, his hurt is self-inflicted. Even if there were to be a vestige of merit in the claim, this action would be disproportionate to its value."

To fritter away one's days with these persecutions, wringing happiness and significance from serving writs - its a pitiful caviling game. To offer Mr Ewing some constructive advice, might I suggest that he delves into some Stoic philosophy - the Meditations of Marcus Aurelius may be a splendid start - and slowly learn the art of not staking his happiness on other men's souls. It'll make for a far more healthsome and satisfying existence, I assure you.

20 July 2010

Just a wee thought and a citation for today. I've been trying to fathom two difficult questions. One - what precisely is David Cameron's Big Society?And two - who precisely is in it? My friend Adam Ramsay, of Bright Green Scotland describes it a scheme for "privatisation through the voluntary sector". Alternative suggestions included the flightier diagnosis that it will be a "new lottery based quiz show hosted by Dale Winton", while the Labour-inclined Lady Edinburghthinks two words will do - "A con" she insists. On one level, of course, it is a unifying narrative, lending apparently general purpose and supporting principle to specific governmental enterprises and changes. On another, it implies any number of innovations and shifts in what a Westminster government aspiring to be smaller will do. Interested Scots have every reason to attend to the devolution detail, clutching their well-thumbed copies of the Scotland Act 1998 and attempting to winnow devolved from reserved changes.

Obviously, changes in England can have consequences for Scotland even if our structures are not correlatively formed and reformed, through existing funding mechanisms and so on. And of course, there is a long and properly observed duty to take an interest in the welfare and the rights of our fellow citizens, even if their challenges and causes aren't exactly our own. To those used to see things through their Scotch goggles, such an approach seems obvious. An English blogger called Britology Watch takes a very similar attitude - but emphasises how appeals to Britishsociety invoked in the presentation of changes which, in the light of devolution, are really only English and Welsh policies. Given the promise of more devolution for Wales, soon Westminster's "our" - no doubt ignorantly to be echoed in the metropolitan press - will be even more narrowly applicable to English schools, courts, universities and hospitals. The chippy Scot is earnest and attentive for false diagnoses of British when English is intended. Britology Watch argues, in general terms, that the English should be equally attentive to these plain but ideological inaccuracies - since universal discourses about our policies, our law equally beguile and misinform English men and women. Returning to my opening questions, this sensitivity to our almost-federated politics is important, if we are properly to understand the realistic, practical compass of Cameron's Big Society rhetoric. To whit, the same blogger has composed a post on the "Geographical extent of Cameron's Big Society". Its detail is well worth bearing in mind.

19 July 2010

Daniel Kawczynski is Tory MP for Shrewsbury and Afcham, Chairman of Westminster's All-Party Group on Libya, and to recent notoriety, wrote this open letter to David Cameron:

Dear Prime Minister,

In the run-up to the release of the Lockerbie bomber, I attempted to interact with the Scottish First Minister and Justice Secretary, asking them to reconsider their intention to release Mr Al-Megrahi.

As you know, they refused to heed the concerns of many people throughout the UK and abroad and release was sold to us on compassionate grounds stating the prisoner had only three months to live. Now, of course, we hear the medical advice was inaccurate and Mr Al-Megrahi, ten months on, continues to live in Tripoli and there are predictions he may live for more then ten years.

Today I have learnt of calls by senior American Senators for an enquiry and investigation into this release, given the fact the Scottish Justice Secretary made such a dreadful mistake. The Scottish Executive has made a decision of a profoundly misguided nature which has had an impact on the standing of the United Kingdom in the eyes of the Arab world and beyond.

I therefore ask you as Prime Minister to assess how your government can hold the Scottish Executive to account and urge you to work towards holding a full public enquiry into the release.

I look forward to hearing from you.

Yours,

Daniel Kawczynski MP

Actually, when I said notoriously, that wasn't quite accurate. Poor Kawczynski's inner detail and individuality has generally been hollowed out by the press, who have styled him in generic silhouette as "a Tory MP". Since I first encountered this story, I've been trying to puzzle out what it might be about, what might have precisely motivated Kawczynski. Despite representing an English constituency, he has Scottish connections, having been educated at the University of Stirling. His epistle certainly focuses on the actions of Scottish ministers, with some dark insinuations that some secret motivation impelled MacAskill to order Megrahi's compassionate release, which the Tory suggests were merely "sold to us", presumably in a hucksterish fashion. Quite what he believes to have been the actual, private motivations of Scottish Ministers, he doesn't say. To quote Alex Massie's worthy, surgical dissection of the procedural and substance ignorance demonstrated by US Senators Gillibrand, Lautenberg, Menendez and Schumer, cited by Kawczynski:

If much of the press reporting is to be given credence we are asked to suppose that MacAskill would have released Megrahi come what may. This, of course, is because of BP and HMG and all the rest of it. But for this to be true we have to believe that if the doctors had said Megrahi's prostate cancer was not so serious and he'd live for another year at least MacAskill would have said, Well that doesn't matter I'm going to release him anyway and so what if this rides roughshod over both established practice and the law? I want to be a Big Boy playing on the big stage. I suggest that this is implausible.

There is, of course, another version not addressed by Mr Massie. Kawczynski may take a different view and suspect Kenny MacAskill of any number of outrages and undeclared secret allegiances which really motivated his release of Megrahi. He may be alleging some form of subversion, or bribery and corruption. If that is his belief, if that is his allegation all evidence despite, then his intervention begins to make some sense. In Kawczynski's fevered imagination, Scottish Government giggerypokery, cover-up and loose practice of scandalous degree is implicated. Alternatively, he may be making a weaker case, ably set out above, that some other overweening aspect of the MacAskillite personality took over. One of these understandings is presumably appealed to in his innuendo-laden phrase about "selling" compassionate release. It is difficult to discern which.

However, there is an alternative explanation for Kawczynski's actions. Given the mounting cynicism and bad faith of all of this, I can't help but wonder if this late low-level Conservative agitation isn't really an excuse slyly to stick it to their Labour predecessors. It may well me that my own fevered Machiavellian consciousness is retrodicting cause from consequence, seeing Tory deliberation and cunning where there is only misinformation and ignorance. Whether by accident or design, as a stratagem, it isn't bad.

Consider. While the letter ostensibly lingers on Scottish ministers, their response was pointed and predictable - distinguishing the heavy attitudes of the compassionate release with the fast and louche international diplomatics and oleaginous commercial fug surrounding in the Prisoner Transfer Agreement which Labour concluded with Gadaffi. Crucially, this riposte was predictable. All it took was a little Conservative provocation. All in the best interests of the Coalition, you might think, to summon back to mind and reinforce perceptions of the outgoing government's record of murkiness, want of transparency and dodgy international dealing. They're all pregnant themes, ones to give Labour's current leadership contenders restless nights and bad dreams. But it was not so easy to turn the story into one about Labour's custodianship of its governmental offices. Kawczynski couldn't just produce a shovel, shift a clod or two and simply produce the body and expect the press to give a fig. Rather, he had to press the instrument into gravedigger Salmond's hands and have him remind everyone what a band of villains the coalition has seen off and out of office. This morning's Heraldfurnishes a stinging headline encapsulating everything I mean: "Salmond: Ask Blair about Megrahi", with the quotation:

“If the US Senate wants to get the truth about the deal in the desert by the UK and Libyan governments in 2007, they should call Tony Blair to give evidence. Blair was its architect – he would be the one who knows about an oil deal.”

After all, the accusation of "ducking responsibility" or attempting to slither out of accountability hardly seems to apply to MacAskill, unless you assume he acted in bad faith and that bad faith has gone undetected. If alternatively you opposed the release but do not assume undisclosed occult mischief in the Scottish Government, MacAskill's accountability has abounded with critical Scottish parliamentary statements, debates, votes and reports on his conduct and his decision. That's what makes me wonder - just wonder - whether the Tories knew this all along and calculated that they'd rough up the SNP to give the Labour party and ex-Labour ministers a fresh bruising. That the Nationalists receive a cut or two in the process is merely a welcome collateral wounding. You may think such finesse political gouging is beyond Tories in general or Daniel Kawczynski in particular. Whether by intention or design, however, "the Tory MP's" Megrahi sally has not served so much to hold Scottish ministers to account as to make another coterie of ministers blush, rummaging for fig-leaves to conceal their own shame.

18 July 2010

"Till the Union made them acquainted with English manners, the culture of their lands was unskilful, and their domestick life unformed; their tables were coarse as the feasts of Eskimeaux and their houses filthy as the cottages of the Hottentots." ~ Dr Samuel Johnson, on the Scots.

My summer reading includes a too-long neglected copy of Roland Black's (2007) edited version of To the Hebrides which sets Dr Johnson's Journey to the Western Islands of Scotland and the companionable James Boswell's Journal of a Tour to the Hebrides side by side. Like my narrators, I've only just embarked on the journey, hidden inside Boswell's pocketbook. While Johnson's commentary is terse and mildly sententious, the latter's prose is full of fun, a touching earnestness, vivid historical detail, the topics raised over dinner conversations and the learned sallies and bouts as Johnson sets about the serious-minded Scotsmen, ministers and professors they encountered on their way up the east coast. At times, both firefly Boswell and his smouldering Johnson cut absurdly earnest figures, discoursing confidently (and dare I frequently spuriously) on any number of topics. Such were the spirits of the learned men of the times. Cynicism of a modern turn in relation to how we conceptualise truth, subjectivity and so on are understandably not much in evidence. In my mind's eye I can almost spot the Scot gravely nodding as his English companion once again cries "No sir!" in response to some local worthy's half-reasoned view on a burning issue of the times, leaving the dumbstruck soul half corrected, half boggled. He was a bumptious old villain in his way, was our Dr Johnson. That said, I can appreciate the gadfly malevolence behind his Socrates impersonation. How else to explain this chortlingly niggling remark in the Journey that:

"A Scotsman must be a sturdy moralist, who does not prefer Scotland to truth."

Both accounts, in their own ways, leave fascinating sketches of two personalities, their relation and their relationship to the world, as best they understood it. I commend the volume to you.

She has one of the best-known names in Scottish politics — but marriage to SNP chief executive Peter Murrell begged the question of how health secretary Nicola Sturgeon would now like to be addressed. Would she now go by Mrs Murrell? Or even Murrell-Sturgeon? These were among questions the Scottish political class wanted answers to.

I always feel an unrepentant flush of depression when feministically-inclined friends get hitched and shake off their family name like so much dust, in a trice turning into chattel-wifies. Of course, people can call themselves whatever they like. Their old patronym may be unloved or unlovely. Perhaps the other party has a more exotic name, and owing to a desire to stand out, the husband's better serves those wagtail ends. I have Swedish friends whose fathers took on their mother's parental names. I've heard of members of the upper classes, even these days, whose wedding was conditional on adopting the name of the wife's landed family. Others hold on to their older surnames but simply add others, united by cheeky hyphens. In some instances, it is merely the woman who double-barrels, but I've known other couples who have both united both surnames and thereby transformed their association into a new unity, equally novel for both parties. Of course, if one begets weans, eventually this virtuous and egalitarian multiplication of names risks becoming absurdly inflated. The simple life beckons. But isn't it amazing how the most patriarchal option is invariably also the most simple solution?

With public figures, too, self-interest and identification comes to the fore. Nobody kens a Nicola Murrell. Still other women I've known simply don't feel the chafe of the change and as a result can't be bothered with the flim flam and the social difficulty they perceive to be associated with the uncertain identity afforded to married women who do not "take" their husbands' names. They assume the yoke of existing social forms and conventions gratefully, not making a scene. Generational differences also obtain. We should be terrifically suspicious of these taken-for-grantednesses. After all, we manage to resist any urge we might possess to twist ourself into knots, faced with the conjugal ambivalences and uncertainties ofa Mr Smith. The uneven anxieties prompted by a Ms Smith should hardly be dignified. Merely reflect on the fact that if this was a prominent male member of the cabinet getting married, none of the questions raised in the Scotsman would even be asked. The ambivalent position is assumed to be entirely occupied by women, men suffering no uncertainty. That Mr Murrell would become a Mr Sturgeon is nigh unthinkable. The gender-politics of heterosexual romantic and civil union become, paradoxically, exclusively a woman's problem.

However, I'm equally conscious that it is rather iffy for a chap to be lecturing women by sticking an insistent finger in a wound they simply don't feel. With friends, I tend to ask gently pointed questions, wonder at their choices, conceal a little flicker of disappointment - and leave matters be. I'm ambivalent. On one level, undoubtedly, how you behave and interlace across the whole relationship matters decidedly more than what you happen to be called. However, the symbolism of the thing also makes me decidedly uneasy. Women are still expected to perform new orbits around their men, transmogrified into a new married identity, while men assume the status with an easy constancy, never called upon to change. That doesn't strike me as a virtuous or appealing credo in the least. Obviously, I've no idea what precisely may have motivated Sturgeon's choice, whether she is an incipient feminist of merely a notorious figure, not wishing to lose her hard-won public notoriety. The latter implies very little in the way of feminist analysis at all. Indeed, its face could quite comfortably be set against many of the qualms I've expressed here.

To end on a more prosaic note, I notice that aided and abetted by his usual accomplices at the Scotsman - who really ought to know better - old Lord George Foulkes is up to his usual tricks. Like a lushed-up uncle propping up the free bar at a wedding reception, Foulkesy takes to his trotters and totters across the floor to disturb the happy occasion and make a small, leaky scene. Having inexpertly parped a bridesmaid and thoroughly forgotten to commend his good wishes to the happy couple, the boozy Baron gatecrashes the wedding article to make a party political point:

"If I was one of the Scottish Government's ministers I'd want to change my name because they are so unpopular. They might not get away with it though. But the Windscale power station did change its name to Sellafield because it was so unpopular."

Classy, isn't he? Another incident for ...

Coming to all good Scottish cinemas near you, some time in 2013. Alas poor Foulkesy, I knew him Horatio!

“I think of him more of a long nosed, elegantly coiffed Afghan pawing through his leather bound library whilst disdainfully inhaling a puddle of Armagnac in an immense crystal snifter. If he can also lift his leg over his shoulder and lick his balls...” ~ Conan the Librarian™

“... the erudite and loquacious Peat Worrier who never knowingly avoids a prolix circumlocution.” ~Love and Garbage

“My initial mind picture was of a scanty bikini'd individual wallowing in a bath tub of peat. However I've since learned to warm to him, and like peat he's slow to draw but quick to heat...” ~Crinkly & Ragged Arsed Philosophers

Definition: "to worry peat" v.

"Peat worrying" is the little known or understood process for the extraction of cultural peat, practised primarily in the Lowlands of Scotland by aspirant urban rustics. Primary implements by means of which successful "worrying" is achieved include the traditional oxter-flaughter but also the sharp-edged kailyard and the innovative skirlie stramasher.